Pubdate: Fri, 01 Jun 2006
Source: California Lawyer (CA)
Copyright: 2006, The Daily Journal Corporation
Contact:  http://www.dailyjournal.com/caLawyer/
Details: http://www.mapinc.org/media/1658
Author: Laura McClure

FUMING OVER THE POT CLUBS

Has Medical Marijuana Burned Out?

The Ouster Of A Popular Medical Marijuana Dispensary By Its San 
Francisco Neighbors Signals Growing Disillusionment With The Medical 
Marijuana Initiative.

The unmistakable scent of burning marijuana lingered on the front 
steps of San Francisco's City Hall one cool night last September. 
Inside, more than 75 citizens murmured and jostled their way into the 
Board of Appeals chambers, there to decide the fate of the most 
popular medical marijuana dispensary in the city. At issue was the 
Green Cross-by all accounts a model pot club-which had operated for a 
little more than a year at the outer edge of the liberal, 
dog-and-stroller neighborhood of Noe Valley. Now, it appeared that 
the dispensary on 22nd Street had worn out its welcome.

Although in 1996 the neighbors voted overwhelmingly in favor of 
Proposition 215, the statewide initiative that legalized medical 
marijuana, the Green Cross-like the city's other 30-plus pot 
clubs-wasn't exactly the result they had envisioned. (Known as the 
Compassionate Use Act, Prop. 215 allows patients and their caregivers 
to possess and cultivate marijuana for personal medical treatment 
upon a physician's recommendation. It also protects such doctors from 
professional and legal sanctions.)

As the meeting got under way, the owner of the club, a nattily 
dressed young man named Kevin Reed, sat quietly in the back of the 
room-far from the woman wearing a plastic pot-leaf tiara in the 
second row and the man in sunglasses with a guide dog that growled 
once, softly, when a stranger leaned over to pet it. Scattered 
throughout the crowd were a nun, several gray-haired teachers, and a 
bevy of young parents-most members of Noe Valley's Fair Oaks 
neighborhood association. One by one, the neighbors stood up at the 
microphone, said that they voted for Prop. 215 in 1996-and then 
complained of increased traffic, noise, and crime. "Have you ever sat 
outside and watched a beehive on a nice summer day?" asked one 
neighbor, a retired nurse. "And watched the bees go in and out, in 
and out, all day? Well, that's what happens down there." A mother of 
three concurred. "It is an unfortunate fact that a percentage of 
Green Cross patrons are criminals whose only intention is to resell marijuana.

It is also an unfortunate fact that criminals carry weapons," she 
said. A third resident urged, "Although I voted for Prop. 215 like 
all my friends and neighbors, I request that you either revoke the 
Green Cross permit or move it out of the neighborhood."

They were followed by patients speaking on behalf of the Green Cross, 
some of whom were also neighbors. "The Green Cross gives me the 
safest place to go," said a former police officer and mother of two. 
Added a middle-aged Montessori teacher: "It's not like we can go to 
Walgreens and say, 'Hey, we want generic.' "

For four hours it went back and forth. Should San Francisco's Board 
of Appeals, which handles permit disputes, force a legally permitted, 
state taxpaying, nonprofit dispensary to move? "You have a tough job 
in front of you," Lawrence Badiner, zoning administrator for the San 
Francisco Planning Department, told the board. "Kevin Reed is either 
the devil incarnate or an angel sent from above." The board's vice 
president, Randall Knox, also weighed in. "Prop. 215 was supposed to 
be the entree to how we allow this herb to be used as a medicine," he 
said. "But I think it would be disingenuous if I were to say that 
most of the marijuana used in this city and in this nation is used 
for medicinal purposes." Through it all Reed said little, except to 
add wearily, "I think most of the neighbors know I really have given 
a good faith effort."

In the end, the board members voted to impose 33 new conditions to 
the permit and gave the Green Cross six months to find another home. 
t wasn't supposed to turn out this way, with neighborhood warfare 
over medical pot. When Prop. 215 came before the voters ten years 
ago, its stated purpose was to allow seriously ill Californians with 
cancer, AIDS, glaucoma, chronic pain, migraines, or "any other 
illness for which marijuana provides relief" to legally grow or 
possess marijuana if a doctor recommended it, primarily for the 
treatment of nausea or pain. (How a patient might come to possess 
marijuana was left largely unspecified, though the Act did encourage 
federal and state governments to provide "safe and affordable 
distribution.") In a city whose large gay population had been 
decimated by AIDS, it wasn't surprising that 78 percent of the voters 
(compared with 56 percent statewide) focused more on how they hoped 
the measure would help the terminally ill than on its fuzzy legal 
parameters. "I think we can be a model for the whole state," San 
Francisco District Attorney Terence Hallinan told the Los Angeles 
Times a month after Prop. 215 passed.

A decade later, San Francisco contains more pot clubs within its 46.7 
square miles than any other city in California.

Figures vary widely (no state agency tracks the numbers), but there 
may be as many as 200 in the state.  "Now either San Francisco has a 
lot of sick people," says Martin Halloran, a sergeant with the 
narcotics division of the San Francisco Police Department, "or this 
has gotten out of hand." More than 8,000 people have medical 
marijuana cards in San Francisco alone; doctors who specialize in 
medical marijuana recommendations take out ads in the back of 
alternative weeklies (one with the memorable phone number 
1-888-POTDOCS). Meanwhile, 20 cities have banned dispensaries 
altogether. Cities that haven't addressed regulation issues are 
seeing an influx of clubs, and many of the same people who voted for 
the ballot initiative are growing disillusioned with its consequences.

Part of the problem is nomenclature: Pot club just isn't a term that 
evokes white coats and pharmacies. And even though state law requires 
California dispensaries to operate as nonprofits, their proprietors 
often refer to them as "companies" and use phrases such as "moving 
product" that can make even their supporters uneasy. But many of the 
objections stem from the mistaken expectation that medical marijuana 
would be dispensed, like Vicodin, by licensed pharmacists in retail 
stores. "I thought it would be in Walgreens," is a common statement 
among the disillusioned, although drug policy experts say this view 
is hopelessly naive.

After all, under the federal Controlled Substances Act of 1970 (21 
U.S.C. ?UKP801-971), marijuana, like heroin, is a Schedule I drug 
with no accepted medical use-illegal in every state.

Until that changes, no national pharmacy is likely to get into the 
marijuana business; California's patchwork quilt of local regulations 
is a response to that basic fact. "Would I vote for it again, 
[knowing what I know now]?" ponders Green Cross neighbor Marvin 
Edwards. "If it turns out like I'm seeing it, I don't think so."

When the Green Cross first opened its doors almost two years ago, 
just two blocks from my house, it generated little controversy. But 
like local views about medical marijuana itself, a lot has changed at 
the dispensary since then. I've followed the fortunes of the Green 
Cross since its beginning, and though I live nearby, I never joined 
the neighborhood association in calling for its ouster.

In fact, I actually enjoyed pointing the club out to people as 
evidence that my tree-lined, Victorian-studded patch of San Francisco 
was less staid than it seemed.

When the store appeared in July 2004, at a corner known for its 
biannually reincarnated restaurants and shortlived clothing 
boutiques, no one really noticed.

With no sign and little else to indicate what it was, the Green Cross 
quietly operated under the radar for about six months.

In January 2005 I described it in San Francisco magazine as the first 
upscale medical marijuana dispensary in the city. Kevin Reed, the 
owner, had as his lofty goal changing the image of medical marijuana 
outlets from one of seedy clubs to safe, inviting boutiques anyone 
would be comfortable having around.

Considering that my neighborhood is even more overwhelmingly 
pro-medical marijuana than the rest of San Francisco (in 1996, Prop. 
215 received a "yes" vote from 88 percent of Noe Valley voters), it 
should have been a comfortable fit. Then came the sign above the 
door-a neon green cross-and the pot plant growing in the window.

Customers began showing up in droves, not all of whom looked like the 
young professionals going into the restaurants nearby.

That's when the complaints of noise, smells, and "unsavory" 
characters began. Of course, if you are a patient, none of that 
matters; what was inside the store was worth it all.

I made an early March visit.

Once past the security guard checking medical cannabis cards at the 
door, the Green Cross seemed like a hip place to be ill. Upbeat 
electronica bounced off lipstick-red walls, a plasma-screen TV showed 
music videos, and a clock above the display counter read "424ever"-a 
reference to 420, old-school pot lingo for "time to smoke" and a 
generic code word for pot. A whiteboard on the wall listed the prices 
for cannabis by weight: 1.75 g = 1/16 = $20, 3.5 g = 1/8 = $40, 28.5 
g = 1 oz = $300. (One ounce was the limit a patient could purchase 
per visit; customers could pay by Visa or MasterCard if they liked.) 
Four stylish "budtenders," three of them women, offered advice from 
behind a long glass counter to patients choosing among 
loose-tea-style jars of pot with names like "Papa Smurf" and "Silver 
Haze," or Ghirardelli pot brownies and gluten-free cookies bearing 
the cheerful label "Incredible Edibles." Tiny lamps with violet 
shades hung in the gloom over the display case; on the back wall, the 
dispensary's cross logo was outlined in green lights. But for all the 
dim lighting and hipster bar music, both patients and staff were 
brisk and professional in their exchanges.

Jason, a 22-year-old with cancer and guarded brown eyes, said he came 
in once every two weeks to buy a type of cannabis called sativa, a 
strain said to relieve depression. Leticia, a 27-year-old neighbor 
and dental-office employee with severe insomnia, came in twice a week 
for an eighth ounce of the same. A third patient, a 60-year-old 
neighbor who declined to give his name, came once a month for an 
ounce of a different strain, indica, to treat a seizure disorder. 
Patrons had a five-minute limit in the store; there was no smoking, 
and not a lot of socializing. They were in and out with their 
purchases, and with up to 300 people a day visiting the club, the 
entryway resembled a revolving door.

With a membership of 4,200 people (on their best day, the budtenders 
sold $45,000 worth of pot products), the Green Cross was exactly what 
many patients wanted-a clean, safe place to buy marijuana that wasn't 
hidden away in a bad neighborhood. Were all the patients really ill? 
The range of illnesses for which doctors can legally recommend pot is 
expansive, including not just diseases but any persistent medical 
symptom that a physician believes is disabling to a patient. If a 
number of the city's card-carrying medical-marijuana patients 
happened to be young men who, as Central District police station 
Captain James Dudley put it, "look like they could beat me in just 
about any sport," it's not the fault of the pot clubs.

There's nothing about oversight of physicians in Prop. 215 or the 
subsequent Senate Bill 420 (Health and Safety Code ? 11362.7-8), 
which in 2003 authorized collective and cooperative cultivation 
projects but never mentioned dispensaries.

I was curious whether the Green Cross patients really fit Dudley's 
stereotype, and whether their skin tones lent credence to charges 
that racism might underlie some of the neighbors' complaints. So one 
Saturday afternoon in March I sat in the coffeehouse diagonally 
across the street from the Green Cross and watched. (Because of 
restrictions imposed by the Board of Appeals on the club-short hours 
on Saturday (noon to 5 p.m.) and none on Sunday-Saturdays are 
particularly busy.) By my count, 43 people entered in one hour. They 
were, in fact, mostly young men in hooded sweatshirts or ball caps 
who looked to be under age 35. About 40 percent also appeared to be 
nonwhite-definitely a higher percentage than among the clientele 
entering, say, the Irish pub next door. Wherever they were parking, 
it wasn't in front of the dispensary-everyone I saw approached on 
foot. Although the corner is zoned a neighborhood commercial cluster 
(NC-1) district, meaning that establishments there exist primarily 
for the use of the neighborhood, sheer numbers seemed to suggest the 
club's customers were coming from far and wide, as critics 
maintained. Still, I had to wonder whether the extra foot traffic 
would have drawn complaints if instead of pot buyers the pedestrians 
were gourmands converging on a rare chocolatier.

By early March, none of the ostensible concerns the Fair Oaks 
neighbors had complained of-increased crime, doubleparked cars, and 
smokers' fumes-seemed relevant anymore.

After the Board of Appeals hearing last fall, the Green Cross limited 
its hours, ramped up security (deploying 17 cameras and at least two 
security guards during business hours), and offered incentives to 
patients who came by public transit and didn't linger.

A lieutenant in the Mission District police station said she hadn't 
heard any complaints from neighbors about nuisance crimes in many 
months, and a look at the crime data for the preceding three months 
showed that the closer you were to the Green Cross and its expensive 
security cameras, the less likely you were to be a victim of any 
serious crime-drug related or not. That left no problems but the 
clientele and the nature of the place itself.

Owner Reed had fought to run a model dispensary, but in the end the 
Green Cross found itself ensnared by tensions intrinsic to the business.

Unlike many of the medical marijuana advocates at public rallies, 
Reed looks less like a pothead than like the young office manager for 
an architecture firm that he once was. Years before that he owned the 
Pit Stop Cafe in Eight Mile, Alabama, a diner specializing in 
Southern comfort food and successful enough that in 1997 the Mobile 
Register's food columnist wrote: "The plucky 23-year-old has an 
entrepreneurial spirit as fresh as his biscuits." Today Reed still 
carries a faint Alabama drawl, and on most days he wears a crisp 
dress shirt of muted tones.

On some days he also wears stylish prescription glasses with brushed 
aluminum frames.

As an advocate with a stake in the outcome of medicalpot policy, he 
keeps an eye on appearances, and says he doesn't believe smoking weed 
on the front steps of City Hall is "anything but counterproductive."

With his thin build, habitual smile, and slight limp (from a car 
accident that left him in pain and a medical marijuana user when he 
was 18), Reed exudes a gentleness at odds with the controversies that 
often surround him. "I thought I was doing it right," he says with a 
sad smile. "I thought I would be the last one standing." At the Green 
Cross he offered health insurance to his employees, kept current on 
permit applications and sales-tax payments to the state, and followed 
the rules for nonprofits-in short, he ran his dispensary as 
legitimately as possible and exactly the way the city asked him to. 
"I spent way too much of my time and energy just to open the door and 
sell weed," he says. "That sounds so illegal, doesn't it? Who the 
hell wants to tell somebody, when they ask you what you do, 'I sell weed'?"

Instead, Reed had plans: He would start a Walgreensstyle chain of 
dispensaries, making medical marijuana respectable by bringing it to 
safe neighborhoods around the city and state.

No banks were willing to provide loans for pot clubs, so in July of 
2004 he used a friend's capital to buy two candy jars' worth of pot 
from another dispensary and started selling small quantities of the 
stuff more cheaply in the Noe Valley locale. "It was the only way I 
knew to start a business from the ground up when you're in 
competition with 40 other stores," he says. After a few months, 
growers began bringing in backpacks full of weed (one medium-size 
backpack can hold about four pounds, or $16,000 worth of pot) from 
their own gardens.

Over time the number of jars in the shop grew to 50. Reed started 
keeping an Excel spreadsheet listing growers (by first names only) to 
whom he owed money-amounts that could range from $12,000 to $49,000 
per batch, which he preferred to pay by check rather than cash. 
Nothing got stale; his experience in the food industry came in handy 
for moving the product along before it grew mold. "Just like a 
grocery store, it has to have expiration dates," he says.

In fact, aside from the two black storage lockers full of pungent 
weed and an excellent security team, the nuts and bolts of running 
the Green Cross weren't that different from running any other small business.

Reed used Quick- Books accounting software, held power meetings in 
the mornings next to an employee schedule color-coded by name, and 
kept an inspirational calendar on the office wall with such phrases 
as "Have great dreams and dare to live them" written in cursive above 
a rocky coastline.

He maintained liability insurance and paid himself modestly ($35,000 
in 2005); he even kept the sidewalk swept on his corner. At the 
height of the Green Cross's success he employed 20 people, including 
five security personnel.

Last year, he paid almost $200,000 in sales and payroll taxes to the 
state. Although he continually feared a raid and arrest by federal 
authorities (neither happened), as far as local matters were 
concerned he believed he was operating by the book. "I mean, almost a 
fifth of a million dollars went back into the system out of my 
store," he says. Still, he understood his risks: "I don't by any 
means fool myself into believing that local support could help me on 
a federal case."

Reed just hadn't counted on grief from the neighbors: "Of course they 
all voted for Prop. 215, and they all believe [medical marijuana] 
should be legal-but only for them!" he says, his drawl growing 
stronger. "They see a young guy who don't look sick, but there's 
nothing I did to give that boy a card. There's nothing I can do to 
take that boy's card away from him. And that's none of their business anyway.

Who knows whether that boy is a caregiver, or a pothead, or a 
recreational user-who knows what that boy is. He could have AIDS and 
look like the healthiest boy walking around in the world.

I don't get to see his doctor's note!" As the Green Cross's six-month 
move-out deadline approached this spring, it was clear it would take 
more than Reed's vaunted pluck (and the real estate agent personally 
referred by San Francisco Supervisor Bevan Dufty) to get the business 
installed in a new home.

At the end of 2005, San Francisco enacted zoning regulations for 
dispensaries so strict that pro-medical marijuana activists such as 
Rebecca Saltzman of Americans for Safe Access consider them a de 
facto cap on new pot clubs. She expects a number of existing clubs to 
close within a year if they can't meet the stringent new planning and 
public health standards, such as wheelchair accessibility. Though 
Saltzman says that the number of dispensaries across the state is at 
an all-time high-estimates range from 127 to more than 200-so is the 
number of moratoria and outright bans on such outlets by cities 
including Fresno and San Rafael. (In January, the San Diego County 
Board of Supervisors even went so far as to sue the state, arguing 
that Prop. 215 is preempted by the federal Supremacy Clause, though 
that theory has gained little traction.)

Perhaps most telling about San Francisco's new regulations are the 
areas they place off-limits to new dispensaries-neighborhoods similar 
to mine. "Ultimately," says Reed, "when you close down the 
GreenCross, you're sending several thousand people back onto the 
streets to get medical marijuana-and the only way I believe marijuana 
is a gateway drug to other drugs is if you send them to Crackville, 
USA, to buy it-or you're sending them back to [clubs] where it feels 
more like a criminal element."

Still, Reed admits that dispensaries aren't the ideal solution.

For one thing, they keep getting raided by the federal Drug 
Enforcement Administration-19 in California in the latter half of 2005 alone.

In its Tips for Would-be Cannabis Providers, the pro-legalization 
group California NORML notes that neither Prop. 215 nor SB 420 
"provides a green light for sales of cannabis. Those dispensaries 
that are selling marijuana over the counter accordingly do so at the 
tolerance of local authorities."

At a time when the tolerance of local authorities even in pro-pot San 
Francisco seems to be wearing thin, many patients would appreciate 
new delivery options. "Maybe in ten years we won't even need to 
smoke, we'll be able to get everything we need out of our little 
[marijuana] tincture sprays," says Reed. Indeed, the FDA has approved 
one synthetic THC medication, Marinol. But not everyone believes 
Marinol works, and for those who don't, dispensaries are one of the 
only quasi-legal ways to obtain the dried herb. A decade ago 
California became the first state to legalize the possession of 
medical marijuana (ten other states have followed), and since then an 
estimated 200,000 Californians have become medical marijuana users.

But last summer the U.S. Supreme Court decided Gonzales v. Raich (125 
U.S. 2195 (2005)), holding that the federal government can regulate- 
and prohibit-the private growth of marijuana for personal use even if 
it's authorized by state law. (On March 27, Randy Barnett, attorney 
for Angel Raich, one of the original respondents in the case, 
appeared before a threejudge panel of the Ninth Circuit, raising 
constitutional challenges to the federal government's complete 
prohibition of her medical cannabis use.)

"The remaining controversy, if there's really any controversy," says 
University of Southern California criminal law professor Charles H. 
Whitebread, "is about whether any federal agents will in fact take 
out after sick people." And if potsmoking patients aren't protected, 
dispensaries are positively an invitation for federal raids.

"Pot clubs are illegal from beginning to end," says Marsha N. Cohen, 
a professor at the University of California Hastings College of the 
Law. "They're in total violation of federal law. You cannot possess, 
buy, or sell marijuana, period. The last time I looked, we were still 
in the United States."

Mark A. R. Kleiman, a professor of public policy and director of the 
Drug Policy Analysis Program at UCLA, agrees. "Prop. 215 didn't 
provide for dispensaries. It didn't provide for Walgreens either.

If you read the law, what it says is that if you're a patient who is 
helped by marijuana and your doctor has recommended it, you can grow 
it and possess it, or your primary caregiver can do it on your behalf.

And the notion that these dispensaries are somehow the primary 
caregiver for hundreds of people at a time is like a bad joke."

Still, that doesn't mean Prop. 215 failed. "Prop. 215 worked just the 
way Prop. 13 worked-it got passed, which is what it was designed to 
do," says Kleiman. "Has it given us a sensible system? No. Could we 
have a sensible system, given that the drug is illegal nationally? 
Probably not." As for the next ten years, any break in the 
state-federal impasse will have to come at the federal level. "The 
right thing to happen," says Kleiman, "would be to get the clinical 
research done and get cannabis rescheduled, which it probably would 
be if the research were done." In fact, a 1999 report by the 
Institute of Medicine, part of the National Academy of Sciences, has 
already indicated some legitimate medical uses for marijuana-which 
suggests that the "lack of research" argument is a red herring.

What's really holding up the rescheduling process is politics. "The 
feds have their heads in the sand," says Cohen. "They seem to think 
that if they California Lawyer June 2006 61 Pot Clubs,continued from 
page 30 just don't look, this will go away. Instead, what they have 
is an endless battle with the states that have some kind of medical 
marijuana law."

But until the political battles at all levels play out, patients like 
those who went to the Green Cross are on their own. "It was just 
politics that closed me down," says Reed, after losing his campaign 
to keep the store open on 22nd Street. "And politics will be the only 
thing that stops me from opening the next one. Because, by the book, 
everybody says that I'm the best." ays after the Green Cross closed, 
Reed, on edge, picks through the empty dispensary. He's ready to 
leave. Echoes ricochet off the bare walls, and with no drapes over 
the windows the sunlight filters in, exposing the peeling paint, the 
dust on the hanging lamps, and just how small the space really is-350 
square feet. The sidewalk outside the dispensary is as bare as its 
interior; one woman slowly pushes a stroller past the "FOR LEASE" 
sign taped inside the window.

The adjacent dispensary office has already been rented out to a 
clothing boutique.

But there may be life for the Green Cross after all, in another 
location, in a few months.

Reed recently found a landlord in the former beatnik sanctuary of 
North Beach willing to rent to him, and angel investors ready to loan 
him money to renovate the new place, which he describes alternately 
as a "shell" and a "disaster." The landlord, like the investors, has 
medical marijuana patients in his family. But although Reed hurriedly 
signed a lease, nothing is set in stone-now he has to navigate an 
entirely different set of neighbors, and there's no guarantee he'll 
be issued a permit.

Today, locking up, he's optimistic but nervous. "Who's to say there's 
not a federal judge who lives behind the place?" he wonders aloud. 
"Who's to say there's not a DA living there who won't like it?" His 
worst fear is that pro-medical marijuana neighbors from the Fair Oaks 
association will follow him across town to complain at the public 
hearing on permits for the new locale. "But that would just be evil," 
he concedes. If all goes well, he hopes to move into the North Beach 
site over the summer-making the Green Cross the first dispensary to 
open in a new location under San Francisco's new, stringent 
regulations. But after almost two years of strife in Noe Valley, Reed 
shrugs, laughs nervously, and steps out into the windy San Francisco 
day, locking the door to the former Green Cross behind him. "This has 
all been a huge gamble for me ever since I started, just to try to help people.

And here we go again," he says. He sighs. "Look, here it is ten years 
later [after Prop. 215 passed], and there was actually somebody doing 
it right and by the book. If I can't open my doors again, then I have 
to think America's not quite ready for medical marijuana."
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MAP posted-by: Beth Wehrman